83 N.J.L. 43 | N.J. | 1912
The opinion of the court ivas delivered by
The defendant was convicted of rape of a child under sixteen years of age. The cas" is presented tons under the one hundred and thirty-sixth section of the (trim
The girl herself testified to her own age and, although at ■one t-ime on her cross-examination she said that all she knew ¡about it was what Mr. Williams told her, she also said on her recross, when asked whether that was all she knew, that her mother told her. . It is well settled that one may testify to his own age (Wigm. Ev., § 667); even the prosecutrix in án action for "rape may do so when it is essential 'to prove that she is under the age of consent. Com. v. Phillips, 162 Mass. 504; State v. Bowser, 21 Mont. 133; People v. Colbath, 141 Mich. 189. The reasons for permitting testimony of this character have been nowhere better stated than by Mr. Justice Dixon, speaking for the Court of Errors and Appeals, in Hancock v. Catholic Benevolent Legion, 40 Vroom 308. Testimony as to the exact birthday must, as he says, rest- on hearsay, but testimony as to the •approximate age rests on one’s own recollection; by counting the years of memory-and adding the short period that ante-d'ates memory' — a period which all normal persons can from -observation and experience approximate with much accuracy, .-a person can form a sufficiently accurate estimate of his age. It has even been held that a witness in & criminal case may testify as to the date of his birth. Com. v. Stevenson, 142 Mass. 466. As Professor Wigmore says: “Practical^ a person’s "belief on this point has a satisfactory basis. Courts have commonly preferred to accept this practical certainty rather than 'to insist on academic nicety.” In a doubtful' case where the
The objection to the complaint made by the girl is that details were permitted contrary to tire rule of State v. Ivins, 7 Vroom 233. We cannot in this court consider whether that rule goes too far, as has been held in more recent cases elsewhere. Wigm. Ev., § 1134ff, § 1760; Reg. v. Lillyman, 65 L. J. M. C. 195. The trial judge followed the rule of the Ivins- case, as we understand it, and excluded all details except that he permitted ihc- prosecutor of the pleas to ask if the girl made a complaint against the defendant. There is nothing in the opinion in the Ivins case which makes it improper io put the question whether the prosecutrix complained of the prisoner, and a consideration of the history of' the rule and the practical effect of evidence of the complaint, leads us to think it permissible. The custom of excluding the details of the complaint, the history of which is traced by Professor Wigmore, was referred to by Baron Parke in Reg. v. Walker, 2 M. & Rob. 212. He there said: “The usage has obtained that the prosecutrix’s counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner’s conduct towards her, leaving the counsel of" the latter to bring before the jury the particulars of the complaint by cross-examination.” In Reg. v. Osborne, C. & M. 622, however, Creswell, J., held that it was improper to ask the name of the person of whom the prosecutrix complained.. He expressed, however, his difficulty, since it would be com
The judgment is affirmed.